Director of Public Prosecutions v Riscevski
[2014] VCC 1676
•6 October 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
CR 13-01634
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUPCO RISCEVSKI |
---
| JUDGE: | HER HONOUR JUDGE DAVIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 September 2014 |
| DATE OF SENTENCE: | 6 October 2014 |
| CASE MAY BE CITED AS: | DPP v Riscevski |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1676 |
REASONS FOR SENTENCE
---Subject: Criminal – plea – sentence
Catchwords: Aggravated burglary – common law assault – summary offence – family violence interim intervention order – sentencing – good prospects for rehabilitation – genuine remorse – undertaking to assist authorities.
Legislation Cited: Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic)
Sentence: Total effective sentence of 18 months imprisonment with a non-parole period of 9 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G. Taberner | OPP |
| For the Accused | Ms B. Franjic | Robert Stary Lawyers |
HER HONOUR:
1Lupco Riscevski, you have pleaded guilty to one charge of aggravated burglary, contrary to s.77 of the Crimes Act Victoria 1958. The maximum penalty for this offence is 25 years' imprisonment. You have also pleaded guilty to one charge of assault contrary to common law for which the maximum penalty is five years' imprisonment. Finally, you have pleaded guilty to one related summary offence, that of breach of a family violence interim intervention order for which the maximum penalty is two years' imprisonment or 240 penalty units or both.
2Mr Devlin for the prosecution has tendered and read out in open court an amended summary of the case that is brought against you which was Exhibit 1. Mr Devlin also tendered a statement made by you on 26 September 2014, in which you give a full account of the incident, which occurred on 21 February 2013 and provide the full name of one of your co-offenders. This is marked as Exhibit 3. I note that you had earlier given police the correct first name of that person, but had been mistaken about his surname. You gave an undertaking before me to give evidence in court in any trial against this co-offender. I sentence you on the basis of the facts set out in the documents I have referred to.
3Mr Devlin also tendered a victim impact statement of Mr Anthony Gregson, dated 26 September 2014, which is Exhibit 2. Mr Gregson did not wish for his statement to be read aloud in court, but I have read it in full. In it, Mr Gregson says that he is always scared and that his life has been changed forever as a result of that night.
4Charges 1 and 2 concern your actions on 21 February 2013. You were unemployed at the time and living with your fiancée and you baby daughter. You were taking Ice daily. You were friends with Jarred Davis and he introduced you to Mr Gregson, whom you had met five or six times before and got on well with. You agreed with Mr Davis that he would buy your car. Mr Davis came over on the day before your offending and was upset to see that the car was in pieces. He said he would return the next day.
5On the morning of the offending, you went to bed around 5 am. You fiancée and baby daughter were asleep. When you woke up, they were gone and the house had been ransacked with most of your items of value taken. The items belonging to Mr Davis, which had been stored at your house were also gone. Mr Davis had come to the house and seen that the car had been vandalised and that the house appeared to have been ransacked. He saw your fiancée who told him she was leaving you. Your fiancée's mother arrived by car, and your fiancée and baby daughter left with her and went to stay with her at her house.
6Mr Davis was unable to wake you and left you a note indicated that he had retrieved his property and that your fiancée and daughter had left with her mother. You rang Mr Davis and accused him of taking your child. He told you that she had gone with her mother.
7That evening, you walked to the home of Offender 2, who you have now fully identified in your statement and asked him to drive you to the premises where Mr Davis lived with Mr Gregson. Offender 2 and another person, unidentified Offender 3, drove you to Mr Gregson's premises. Mr Gregson was there with Mr Davis and three females and was farewell two other friends. You were carrying an imitation firearm. You forced the front door open, pointed the imitation firearm towards Mr Gregson and said words to the effect, "Anthony, where's my daughter, I want my fucking daughter." This is the subject of Charge 1, aggravated burglary.
8You then placed the imitation firearm into the mouth of the victim and forced the victim to walk backwards, down the hallway until he was pinned to the wall. This is the subject of Charge 2, common law assault.
9You then walked off down a passage towards the rear of the premises, calling out for Mr Davis. Mr Gregson was seriously assaulted by Offender 2, but at the time of that assault, you were towards the rear of the house. These acts are not alleged against you and I do not take them into account.
10According to the statement you gave to police on 26 September 2014 at the plea hearing, when you went to the rear of the house, you asked Mr Davis where your daughter and fiancée were. He called Ms Hardy and asked her to speak with you. You then spoke to Ms Hardy. She told you that she was at her mother's house with your daughter.
11Then, again according to the statement given on 26 September 2014, you walked back towards the front of the house, where you found Mr Gregson in the corner of the hallway holding his hand. You said there was blood everywhere. You told one of the women not call an ambulance but to go straight to the hospital. You helped wrap Mr Gregson's hand in a bathroom towel. You then saw Offenders 2 and 3 threatening the other occupants of the house. You said in your statement that the other offenders ran out of the house with iPads and a computer in their hands. You then asked Mr Davis to give you a lift home, which he initially agreed to. However, you ended up walking home.
12You were arrested and interviewed on 23 April 2013. During the interview, you admitted taking amphetamines on the day of the offences, admitted being angry, stated that you had no plan, stated that you went to the victim's premises to speak with Mr Davis and find out where your fiancée and daughter were. And where your things and car were, admitted attending at the victim's home with the two co-offenders, denied having any weapons or a firearm with you, admitted kicking the door open and wrestling with Mr Gregson, stated that you ran after Mr Davis to the back room, and stated that after the incident, you walked home from the victim's house.
13The committal was held on 27 August 2013, on 1 July 2014, your lawyers approached the prosecution to resolve the matter by way of plea.
14The related summary charge of breaching an interim intervention order relates to an event which occurred on 22 February 2013. It was transferred to this court after the committal in late August 2013. At that time, you and your fiancée had had in place, since December 2012, mutual intervention orders under the Family Violence Protection Act 2008, which did not preclude contact but which prevented each of you from undertaking family violence.
15On 22 February 2013, you went to your fiancée's mother's house to visit your fiancée and your daughter. At this time, your fiancée's mother and brother, along with your own mother, were present with your fiancée. There was an argument over your fiancée leaving you and taking the baby. During this argument, you were holding your daughter and said, "You think I'm joking", and pulled a cigarette lighter shaped like a pistol out of your bag. Your fiancée became scared, took the baby from you, ran into another room and called police. You later attended a police station and admitted that you had visited your fiancée and produced a lighter. You said your intention was to scare your fiancée because she was trying to take your daughter. Your counsel submitted that a wholly suspended was an appropriate disposition for this offence.
16You have prior convictions, but none for violent offending. I will refer to these below.
17In your plea, on your behalf, your counsel relied on a number of documents which were tendered as annexures to her outline of submissions as Exhibit A. The documents include a medical report from your treating doctor, Dr Jim Ristevski, dated 15 September 2014, which confirms that you have been diagnosed by a psychiatrist with Adjustment Disorder with anxiety and depressed mood, and had been taking Avanza and Lovan for your symptoms. You have also been referred to a psychiatrist for counselling.
18There were letters from Dr Ristevski, dated 13 September 2014, confirming that he is treating each of your parents for depression, which has been exacerbated by your current predicament. A psychological report of Ms Carla Lechner, dated 21 September 2014, a negative urine drug screen, dated 30 August 2014 and a letter confirming your full-time employment as a supervisor with a caravan company earning approximately $55,000 per annum gross.
19Ms Lechner's report outlined your personal circumstances. You are 30 years old and grew up in Melbourne with your parents and younger brother. You currently live with your fiancée and your daughter, who is now two. You were an average student with a normal social life and had a solid home life with both parents working. You completed Year 12 with a low score and joined the workforce, initially working at a betting company for 18 months, then joining the caravan building industry, where you have largely worked since. You have resigned from your current job in anticipation of being sentenced to a term of immediate imprisonment, but your employer has indicated a willingness to rehire you upon your release.
20In 2011, you became depressed when you broke up with your then girlfriend and two of your close friends died. In 2011 and 2012, you were unemployed and using Ice. Before this, you had never used illicit drugs. You then formed a relationship with your current fiancée, but she became pregnant unexpectedly, and this caused an increase to your stress when you decided to live together.
21You expressed genuine remorse for your actions, and particularly remorse for the injuries suffered by Mr Gregson, with whom you had no argument. After this incident, according to Ms Lechner's report, you immediately ceased your drug use, obtained employment, cut all ties with your former friends and associates and reconciled with your fiancée. Ms Lechner felt that at the time of the offending, you were suffering from a stimulant use disorder, which is now in remission, but continue to suffer from an adjustment disorder with depression, for which you are taking anti-depressants. She noted that you have a stable family support, a supportive partner, good employment prospects and have changed your behaviour since your offending.
22There were also character references from your fiancée, your brother, your aunt, your first cousin, your parish priest and your current employer. Your brother and fiancée also gave evidence on your behalf at the plea hearing. Your brother said that you never took drugs or were violent prior to 2012. The family was proud of how you had turned your life around after your offending, getting a job, stopping drugs, breaking off ties with your former associates and attending weekly family dinners. He said that you have expressed your shame and your remorse to him for your offending a number of times, and that you have cried when doing so. Your fiancée said that when she first met you, you were not using drugs. She fell pregnant and you were using drugs and socialising with drug users. She left you on 21 February 2013 because you were asleep and she thought she could get out then. She said that you have completely changed since your offending. You immediately stopped using drugs, moved back with your parents and got a job.
23You moved back in with your fiancée about a month later. You have had no contact with any of your former associates, you work very hard and do as much overtime as possible. You are the sole breadwinner for your family and she does not know how she will pay the rent while you are in gaol. You were supported in court by your parents, brother, fiancée, aunt and two cousins. The oral and written evidence was to the effect that apart from the period where you were unemployed and taking Ice, you have a solid employment history, have been a devoted son, brother, partner and family member, had not taken drugs nor ever been violent.
24Since committing these offences, you have demonstrated genuine remorse, continued to be a devoted worker and family man and have not taken any drugs nor offended further.
25Your counsel's plea in mitigation outline the circumstances of the offending in more detail. You were buying drugs for Mr Davis and taking drugs together with him. You owed him money. At the time of the offending, you were using four times a day. When you awoke to find the house ransacked, you thought Mr Davis was responsible for that and for the absence of your fiancée and daughter. You called Mr Davis, your phone ran out of battery, you were in a highly agitated and irrational state. You walked to the co-offender's house and asked for a lift to Mr Davis's house. You had no idea that the second offender, who injured Mr Gregson, had a weapon and did not ask him to take one.
26The second offender was a friend of yours and he wore a balaclava at the time of the offending. Without your assistance, he could not be identified. He is currently in custody. You are putting yourself at personal risk by identifying him and by undertaking to give evidence at his trial.
27After you assaulted Mr Gregson, you sought out Mr Davis. You had no reason for wanting Mr Gregson injured and were so horrified by what happened to him, that you did not leave the house with your co-offenders and according to the statement that you gave police on the day of the plea, assisted in wrapping Mr Gregson's injured with a towel. You then walked home after initially asking Mr Davis for a lift.
28These matters have taken a great emotional toll on you and your family. Your parents' depression has worsened and your father has lost 20 kilograms. You suffer from an adjustment disorder and are extremely remorseful for your conduct and regretful for the injuries suffered by Mr Gregson, for which you are not charged.
29You are taking medication for your condition and have had two counselling sessions with a psychologist. You have a very supportive immediate and extended family. I consider that this reduces the likelihood of your re-offending and the need for specific deterrence. You are the sole breadwinner for your family. You have severed all ties with your former associates. Ice is the only drug that you have ever used and you have not used it since you offended.
30As mentioned earlier, since your offending, you have found stable employment and your employer has indicated that he will rehire you once your complete your sentence.
31I turn to your criminal history, which is limited to summary matters which you do not now recall. On 27 September 2012, you appeared in relation to charges of burglary, theft and going equipped to steal and were fined an aggregate of $1,500 with conviction. On 4 March 2009, you appeared in relation to charges of carrying a dangerous article in a public place and carrying a controlled weapon without excuse. You do not recall this matter, apart from the fact that you had scissors in a bag. You received a fine without conviction. On 6 August 2008, you received, without conviction, adjourned undertaking in relation to a charge of obtaining property by deception, the details of which you do not recall. On 4 February 2008, you received an adjourned undertaking in relation to a charge of stalking, which related to a former girlfriend. On 21 May 2007, you received a, without conviction, adjourned undertaking in relation to two matters. A charge of burglary when you were caught breaking into a shipping container and stealing a car suspension, and a charge of breaching an intervention order which related to phone calls made to an ex-girlfriend. You have never been sentenced to a term of imprisonment.
32Mr Devlin submitted on behalf of the prosecution that a term of immediate imprisonment was appropriate. He conceded that there should be a discount for the plea, itself, even though made after the committal, on the basis that a trial has been avoided. He also conceded that a substantial discount should be given for the statement you gave recently, providing the surname of the co-offender who seriously injured Mr Gregson. He submitted that now that this information has been provided, the investigation, which could not proceed, could now move forward and there is a significant community benefit in offenders being brought to justice.
33Mr Devlin submitted that there should be some cumulation in respect of Charge 2 because you put the weapon in the complainant's mouth and caused him fear. He also submitted that there should be some cumulation in respect of the related summary charge on the basis that you have previously breached an intervention order and know your obligations in that regard, and also because you intended to create fear in your fiancée by producing the lighter and telling her you were not joking.
34I turned to the reasons for imposing a custodial disposition. The aggravating features of your offending are that you attended the premises where Mr Davis and Mr Gregson were residing, in company. That you were responsible for your co-offenders being present and that you had with you an imitation firearm, which put Mr Gregson in fear. I accept, however, that the element of danger flowing from an operation weapon was not present. I also accept that the reason for your attending the property was to find Mr Davis and to find out where your fiancée and daughter had gone. To this extent, this case is somewhat unusual.
35There are significant mitigating matters present in your case. Firstly, your plea of guilty, even though made after committal, has utilitarian value in sparing the inconvenience to witnesses and jurors and expense of a trial. It also evidences your remorse.
36Secondly, it is clear from your discussions with Ms Lechner, your fiancée, your brother and your priest among others that you are genuinely shocked by what happened on that night and are very remorseful for your own conduct. There genuineness of your remorse is also indicated in your willingness to make the statement to which I have referred to above, which identifies the full name of the second offender who caused serious injury to Mr Gregson.
37Thirdly, in making that statement and giving an undertaking to this court that you will give evidence against the second offender in the event he faces trial, you have given significant assistance to the informant. Without your evidence, it would not be possible to identify the offender and bring him to justice. He is already in custody, and for this reason, for your own safety, you will need to be held in protective custody which will make your time in custody more onerous than if you were in the general prison population.
38Fourth, your conduct since your offending, demonstrates that you have very good prospects of rehabilitation. You have expressed genuine remorse for your actions, not offended further, you have been drug free, cast off your former associates, been employed full time, reconciled with your partner and assumed the role of financial provider for your family. Importantly, you have consulted with a psychologist and psychiatrist and are taking appropriate medication for your condition. You have the promise of further employment upon your release. You have a very close, supportive nuclear and extended family. I accept that your anguish at being unable to provide for your family will make the experience of imprisonment more burdensome for you.
39Finally, I note that you have no relevant prior convictions and that your offending conduct involved minimal planning and was not sustained. I have also noted above the unusual features of this case. I consider, in this case, that specific deterrence and community protection are not significant sentencing objectives.
40In all the circumstances, even though I accept the matters put on your behalf by your counsel, I consider that I have no alternative but to impose an immediate custodial disposition on the charged of aggravated burglary. Aggravated burglary is a very serious offence which is reflected in the 25 year maximum term of imprisonment that it carries, and one which ordinarily would attract an immediate custodial sentence. The principles of general deterrence loom large in cases such as this. The assault, even though it involved use of an imitation firearm, caused great fear to the complainant.
41Would you please stand Mr Riscevski?
42On Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of 15 months. This is the base sentence.
43On Charge 2, common law assault, you are convicted and sentenced to a term of imprisonment of six months. On the question of whether there should be any cumulation, I note that while the charges are discrete, the offences were committed in the same place and at the same time and that there is some degree of overlap and care must be taken to avoid double punishment. However, in the circumstances of this case, I consider that total concurrency would fail to do justice. Accordingly, I direct that three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
44In the light of the fact that your prior related matter of breaching an intervention order is somewhat dated, having been dealt with in 2007, I consider it appropriate in relation to that charge to impose a fine of $1,500.
45The total effective sentence is therefore one of 18 months' imprisonment. I propose to fix a term of nine months before you become eligible for parole on the basis of your excellent prospects for rehabilitation and the efforts you have made since your offending, as I have already detailed them.
46Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you to a total effective sentence of three years, with a non-parole period of two years, in relation to Charges 1 and 2.
47The prosecution also sought a forensic sample order pursuant to s.464ZF of the Crimes Act 1958, which you do not oppose. I direct that you undergo a forensic procedure for the taking of a scraping from the mouth and or a blood sample in accordance Subdivision 30A of Part 3 of the Crimes Act 1958, until a sample of sufficient standard is obtained for the placement on the database.
48There was also, as I understand it, a disposal order sought, but we never received the order.
49MR TABERNER: Yes, Your Honour. I have drafted that order.
50HER HONOUR: All right. And there was a one day pre-sentence detention, is that still the only day?
51MR TABERNER: Yes, Your Honour.
52HER HONOUR: All right. So I will declare that there is one day of pre-sentence detention which falls to be taken into account. Are there any other matters that I need to address?
53MR TABERNER: I believe you have addressed this, Your Honour, but under s.5(2AB) of the Sentencing Act, I think it has to be spelt out
54HER HONOUR: Oh yes. I direct that the prisoner's undertaking be noted in the court's records and that the prisoner will, after sentencing, assist law enforcement authorities in the investigation or prosecution of an offence and this was taken into account in imposing the sentence. All right, I will add that to the text of the sentence but is also in the orders that we will make.
55MS FRANJIC: As Your Honour pleases.
56HER HONOUR: Were there any other matters that need to be addressed?
57MS FRANJIC: No, Your Honour.
58MR TABERNER: No, Your Honour.
59HER HONOUR: All right. And do you have the orders that need to be signed? Take a seat Mr Riscevski.
60MS FRANJIC: I did just think of something Your Honour.
61HER HONOUR: Yes.
62MS FRANJIC: The stay in relation to the fine.
63HER HONOUR: Yes.
64MS FRANJIC: Can I seek a stay until the end of today so my client can make arrangements.
65HER HONOUR: You could have a stay of three months. You do not have to seek today.
66MS FRANJIC: The end of today would be suitable because arrangements can be made in relation to custody.
67HER HONOUR: All right. I will just grant a stay until tomorrow. Nothing hangs on it.
68MS FRANJIC: As Your Honour pleases.
69HER HONOUR: I will just have to sign the orders later because there is just a technical problem with them. But before we adjourn, we will have Mr Riscevski removed please. Thank you.
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